Submitting no ISO certificate? You don't need to prove why you couldn't get one
The Council of State rejects Sodexo's appeal: a tenderer who does not submit a quality certificate and instead provides 'equivalent measures' implicitly proves that the certificate could not be obtained in time — no separate 'negative' burden of proof is required.
What happened?
The Brussels municipality of Uccle launched a tender for hot meals for its primary schools for 2018-2021, with the main lot estimated at €4.6 million. Three bidders submitted: API Restauration, TCO Service and Sodexo Belgium. Sodexo had the lowest price and full marks for the price criterion, but TCO scored higher on food quality, organic products and variety. Final score: TCO 93.24 / Sodexo 90 / API 77.4. TCO was awarded the contract. Sodexo went to the Council of State on extreme urgency. Its argument: TCO had submitted neither an ISO 9001 certificate nor an EMAS or ISO 14001 environmental certificate. The specifications allowed 'equivalent measures', but according to Sodexo only when the bidder could prove it had no access to the certificate — TCO had not proved this, and the contracting authority had not investigated it. Moreover, TCO's environmental management system was 'still being set up', with EMAS registration only expected in January 2018 — after the bid opening and after the award decision. The Council of State sided with neither argument. On the quality certificate: choosing the 'third way' (equivalent measures) and submitting a substantial dossier already implies the bidder could not obtain the certificate in time, since a certificate is simpler and safer for a bidder. TCO's annex with thirty pages on organisation, hygiene, AFSCA authorisation and Quality Partner certificate sufficed. On environmental management: article 72, 4° of the 2011 Royal Decree explicitly speaks of measures the bidder 'will be able to apply during execution' — meaning the condition must be met during execution, not at bid opening. The announced EMAS registration plus the detailed description of bio-products, short supply chains, ecological cleaning products and waste management was sufficient. The appeal was rejected.
Why does this matter?
Contracting authorities frequently get tangled in the three routes the 2011 Royal Decree (and later the 2017 Royal Decree) allows for proving quality or environmental requirements: certificate, equivalent certificate, or equivalent measures. For bidders without ISO certification this judgment is reassuring: you don't first have to prove you couldn't get a certificate before submitting equivalent measures. For contracting authorities the flip side matters: if you open the 'third way' in your specifications, you can't later impose a double burden of proof.
The lesson
If your specifications open the 'equivalent measures' route for quality or environmental management, don't also require bidders to provide negative proof that they couldn't obtain the certificate. That requirement only applies under the 2016 Procurement Act (and the 2017 Royal Decree) — not automatically under the older 2011 Royal Decree. Always check which regulation applies ratione temporis to your contract: similar wording in your specifications does not automatically make the newer rules applicable.
Ask yourself
Does your evaluation report explain concretely why a bidder's equivalent measures are equivalent to the requested certificate (ISO 9001, EMAS, ISO 14001)? A reference to 'the principles are applied' without substantiation is not enough — request a detailed dossier and analyse it in your report.
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →